Smog Rules Illegally Weakened, Court Says

A federal appeals court today struck down an attempt by the U.S. Environmental Protection Agency to weaken national rules limiting smog linked to asthma attacks, increased hospitalizations, and that puts millions of Americans at risk for respiratory problems. In a unanimous ruling, the court held that EPA violated the Clean Air Act in relaxing limits on smog-forming pollution from large power plants, factories, and other sources in cities violating health standards. Earthjustice brought the court challenge on behalf of the American Lung Association, Environmental Defense, Sierra Club, and Natural Resources Defense Council.

Also challenging the EPA rules as too weak were the Clean Air Task Force (on behalf of the Conservation Law Foundation and Southern Alliance for Clean Energy), Louisiana Environmental Network, South Coast Air Quality Management District, and a coalition of states including Massachusetts, Delaware, Maine, New York, Pennsylvania, and the District of Columbia.

"This decision is a victory for clean air," said Earthjustice attorney David Baron. "The air in some cities is sometimes so dirty that kids can't safely play outside. Health experts say we need stronger, not weaker limits on smog."

Earthjustice argued that EPA's action made no sense because it came after the agency found that the previous ozone standard was too weak to protect public health. "The rule allowed more pollution in cities where the air was already unhealthy to breathe," said Baron. Cities that were at risk for increased pollution under EPA's action included Chicago, Houston, Milwaukee, New York, Atlanta, Baltimore, Baton Rouge, Philadelphia, Sacramento, Washington (DC), Beaumont-Port Arthur, Boston, Dallas, Providence, and San Joaquin Valley, CA, among others.

"Tens of millions of Americans in the nation's most polluted urban areas will be able to breathe easier because the courts continue to reject this administration's agenda to protect polluters at the expense of the rest of us," said John Walke, Director of the Air Program at the Natural Resources Defense Council.

The 1990 Clean Air Act required stronger anti-smog measures in cities violating ozone standards, including limits on pollution from new and expanded factories, requirements for annual cuts in smog-forming emissions, and caps on truck and car exhaust. In 1997, EPA found that the then-existing "1-hour" ozone health standard wasn't strong enough to protect health, and adopted a new "8-hour" standard to provide greater protection. But paradoxically, the agency in 2004 adopted rules that weakened pollution control requirements for areas violating both the old and the new standard. That triggered the court challenge leading to today's decision.

"The court's decision to uphold the Clean Air Act is a victory for human health, not just the rule of law," said John Balbus, MD, MPH, the Health Program Director at Environmental Defense, and former Director of the Center for Risk Science and Public Health at George Washington University. "As a doctor, I know that enforcing this provision of the Clean Air Act will save lives and prevent suffering by protecting millions of children and seniors from ozone-triggered illnesses."

"This is a splendid holiday present for the nation," said John L. Kirkwood, President and Chief Executive Office for the American Lung Association. "The Court has given children and adults long burdened by dangerous, smoggy air the gift of breathing easier."

The court also rejected EPA's decision to exempt many cities violating the new standard from the law's most protective requirements. EPA argued that it should have discretion to apply weaker protections to these areas, but the court held that Congress -- frustrated with past failures to meet standards -- required a stronger approach.

"EPA has a responsibility to protect our health and our environment from dirty, polluted air," said Marti Sinclair, chairperson for Sierra Club's Air Quality Committee. "Millions of Americans breathe air with unsafe ozone levels, and they deserve stronger, not weaker protection under the law."

Ozone is associated with asthma attacks, coughing, wheezing, and other respiratory illness. Higher smog levels in a region are frequently accompanied by increased hospitalization and emergency room visits for respiratory disorders. Hundreds of counties across the country currently have unhealthful levels of smog, which limits outdoor activities, increases hospitalizations, and puts millions of Americans at risk for respiratory problems.

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